Shek v. Childrens Hospital Research Center of Oakland et al

Filing 47

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT AND VACATING HEARING by Judge William Alsup [granting 25 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 11/30/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN SHEK,
No. C 12-04517 WHA

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For the Northern District of California

United States District Court

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Plaintiff,
v.

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CHILDREN’S HOSPITAL RESEARCH
CENTER OF OAKLAND, ET AL.,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT
AND VACATING HEARING

Defendants.
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INTRODUCTION

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In this wrongful-termination action, defendant moves to dismiss pursuant to

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FRCP 12(b)(6). For the reasons stated below, the motion is GRANTED. The hearing scheduled

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for December 13, 2012, is VACATED.

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STATEMENT
Pro se plaintiff John Shek was employed by defendant Children’s Hospital Research

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Center of Oakland as a radiologic technologist from March 2006 until January 2011.

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According to the complaint, throughout his employment plaintiff was harassed and intimidated

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on numerous occasions by defendant Cedric Wilson, the former director at the hospital.

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Plaintiff alleges that he contacted defendant Brenda Husband, the hospital’s human resources

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manager, regarding the harassment; however, no action was ever taken against Director Wilson.

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On April 20, 2010, plaintiff was laid off. Plaintiff requested that the union file a
grievance the next day on the basis that he was “picked out of seniority order and per diems

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[were] working while benefitted technologists were being layoff ” [sic] (First Am. Compl. ¶ 11).

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Plaintiff was allegedly told by the union representative, defendant Nato Green, that plaintiff was

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the least senior CT technologist and because the hospital overstaffed CT technologists, plaintiff’s

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position at the hospital was being eliminated. Plaintiff alleges that this reason was pretextual

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and that he was discriminated against because he is Asian and over the age of forty.

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In May 2010, plaintiff accepted full-time employment at the hospital’s location in

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Walnut Creek (id. at ¶ 18). Due to the complaint’s ambiguity, it is unclear whether plaintiff

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worked at the Walnut Creek hospital, or was re-hired for his previous position on the night shift

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at its Oakland facility. Regardless, plaintiff alleges that the harassment and discrimination
by Director Wilson caused plaintiff to suffer a “stress breakdown,” for which plaintiff saw an

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For the Northern District of California

United States District Court

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occupational physician (id. at ¶ 43). The complaint further alleges that plaintiff filed a workers’

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compensation claim because of his disability (id. at ¶ 51). Plaintiff was scheduled for medical

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leave due to his “mental disability;” however, he was laid off for the second time on January 10,

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2011.

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The complaint alleges that in January 2012, plaintiff discovered that the hospital was

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violating the collective bargaining agreement by hiring “per diem” employees to prevent

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the posting of three full-time positions “so they don’t have to recall 2 Asian over 40 year old

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technologists” [sic] (id. at 3–4). Plaintiff filed a charge with the EEOC against the hospital

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on April 17, 2012, alleging that such action violated the collective bargaining agreement

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because per diems were required to be laid off first.

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Next, plaintiff discovered that the hospital was posting full-time positions online,

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allegedly in violation of the collective bargaining agreement. Plaintiff alleges that he should

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have been “recalled” for his position because he was laid off less than eighteen months prior

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(id. at ¶ 22). Plaintiff filed another charge with the EEOC for discrimination against the hospital

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on July 17, 2012. Plaintiff received a notice of complainant of right to sue that same day.

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Plaintiff then commenced this action, identifying four claims for relief: (1) “retaliation for

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filing disability claim” in violation of the ADA; (2) constructive discharge; (3) “disparate

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treatment- race discrimination;” and (4) “age discrimination” (id. at ¶¶ 55–58). The hospital
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now moves to dismiss the first amended complaint on the grounds that (1) a majority of the

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allegations, including plaintiff’s termination, are time-barred, and (2) the allegations that are not

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time-barred are insufficient to state a claim for relief.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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FRCP 8(a) requires “‘a short and plain statement of the claim showing that the pleader is entitled

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to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests.’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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For the Northern District of California

ANALYSIS

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United States District Court

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At a minimum, a plaintiff must provide “the ‘grounds’ of his ‘entitle[ment] to relief’ [which]

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action.” Ibid. To ensure that pro se litigants do not lose their right to a hearing on the merits

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because of a technical procedural requirement, our court of appeals construes pro se pleadings

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liberally. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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On a motion to dismiss pursuant to FRCP 12(b)(6), a district court may “consider

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unattached evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to

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the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the

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authenticity of the document.” United States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir.

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2011) (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).

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1.

DISCRIMINATION CLAIMS.

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The complaint alleges that plaintiff was discriminated against because he was (1) over the

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age of forty, (2) Asian, and (3) disabled. Plaintiff alleges that the hospital treated the young,

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female, African-American ‘per diem’ technologists more favorably, thus evidencing its

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discrimination towards plaintiff’s age, race, and disability. Plaintiff alleges violations

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pursuant to the Americans with Disabilities Act (42 U.S.C. 12101), the Age Discrimination

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and Employment Act (29 U.S.C. 621), and Title VII of the Civil Rights Act of 1964 (42 U.S.C.

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2000). Our court of appeals has held that Title VII, the ADA, and the ADEA do not impose
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individual liability on employees. See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.

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1993). Accordingly, plaintiff’s discrimination claims against each individual defendants fails.

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Because the complaint’s discrimination and retaliation claims are either time-barred or fail to

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plead a claim for which relief may be granted, the hospital’s motion to dismiss plaintiff’s

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discrimination and retaliation claims is GRANTED.

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A.

Time-Barred Discrimination and Retaliation Claims.

dismissed because of plaintiff’s failure to comply with the statutory time period for filing a

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charge with the EEOC. This order agrees insofar as plaintiff’s discrimination claims are based

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upon the allegation that the hospital terminated his employment (on January 10, 2011) because

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For the Northern District of California

Defendant first asserts that plaintiff’s Title VII, ADA, and ADEA claims should be

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United States District Court

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of his age, disability, and race. Because plaintiff’s termination occurred fifteen months before he

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filed the earlier of the two EEOC charges, his discrimination claims, to the extent they are based

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on these allegations, are time-barred. In regards to Title VII:

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Title 42 U.S.C. [Section] 2000e–5(e)(1) is a charge filing provision
that ‘specifies with precision’ the prerequisites that a plaintiff must
satisfy before filing suit. An individual must file a charge within
the statutory time period and serve notice upon the person against
whom the charge is made. In a State that has an entity with the
authority to grant or seek relief with respect to the alleged
unlawful practice, an employee who initially files a grievance with
that agency must file the charge with the EEOC within 300 days of
the employment practice; in all other States, the charge must be
filed within 180 days. A claim is time barred if it is not filed
within these time limits.

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National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (internal citations omitted).

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Thus, Title VII requires an employee to file a charge of discrimination with the EEOC

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within the statutorily-mandated deadline (180 or 300 days from the alleged discriminatory act).

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“The 180-day limit serves as a judicial statute of limitations as well, generally barring

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subsequent suit on discriminatory incidents occurring prior to the 180-day period.” Sosa v.

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Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990). The ADA and ADEA likewise require employees

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to file charges within the same time period in order to institute a civil action. 42 U.S.C.

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12117(a); Aronsen v. Crown Zellerbach, 662 F.2d 584, 586 (9th Cir. 1981).

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Filing a timely charge of discrimination is “not a jurisdictional prerequisite to suit in

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federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel,

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equitable tolling . . . . The provision granting district court jurisdiction under Title VII does not

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limit jurisdiction to those cases in which there has been a timely filing with the EEOC.” Zipes v.

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Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Thus, a district court may in equity decide

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to toll the limit in special situations. Sosa, 920 F.2d at 1455–56 (continuing violation shown);

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Temengil v. Trust Territory of the Pac. Islands, 881 F.2d 647 (9th Cir. 1989) (employee lacked

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access to information); Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207 (9th Cir. 1981)

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(employer affirmatively sought to mislead the charging party).
Here, however, plaintiff does not allege any facts that would support grounds for

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For the Northern District of California

United States District Court

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equitable tolling. The complaint alleges that on January 10, 2011, the hospital fired plaintiff

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while he was on stress leave (First Amd. Compl. ¶ 43). Plaintiff, however, did not file his first

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EEOC charge until April 17, 2012, 463 days after his termination. Thus, to the extent plaintiff’s

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discrimination and retaliation claims are based on his termination, they are time-barred.

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B.

Non Time-Barred Discrimination Claims.

In support of plaintiff’s discrimination theory, the complaint alleges two instances

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of discriminatory conduct occurring after plaintiff’s termination and within the statutory time

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period. First, plaintiff alleges that the hospital “maneuver[ed] around language of Collective

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Bargaining Agreement to prevent the posting of 3 full time positions so they don’t have to recall

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2 Asian over 40 year old technologists” [sic] (id. at ¶ 21). Second, “Defendant were posting

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fulltime Position online . . . Per Collective Bargaining Agreement within 18 months Plaintiff

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should be recall when there are job Opportunity” [sic] (id. at ¶ 22). Assuming the truth of these

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allegations, this order finds that the complaint fails to state a claim upon which relief may be

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granted.

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To have a valid discrimination claim under Title VII, the ADEA, or the ADA, a plaintiff

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must plead in his complaint that, among factors, he suffered an adverse employment decision.

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Plaintiff’s complaint is devoid of any allegation (that is not time-barred) that the hospital took

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an adverse employment action against him. Although plaintiff, in his opposition, purports to
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cite to the collective bargaining agreement for the proposition that “All per-diems Per diem

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technologists Can not be working during and after Layoff” [sic] (Opp. at 7), this is an inaccurate

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quote. Plaintiff identifies no provision within the collective bargaining agreement showing that

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the hospital took an adverse action against him by either failing to (1) notify him of vacant

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positions, or (2) “recall” him to work. Because the complaint fails to allege facts that plaintiff

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is entitled to relief under Title VII, the ADA, or the ADEA, defendant’s motion to dismiss

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plaintiff’s discrimination and retaliation claims is accordingly GRANTED.

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Plaintiff’s second for claim for relief is entitled “Constructive Discharge” and states

CONSTRUCTIVE DISCHARGE.

that “[b]y the aforesaid acts of discrimination, the Defendants corporation and each one of them

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For the Northern District of California

United States District Court

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violated the public policy” (First Amd. Compl. ¶ 56). This order necessarily assumes two things.

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First, that plaintiff intended to plead wrongful discharge, rather than constructive discharge,

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which occurs when “a reasonable person in [the employee’s] position would have felt that he

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was forced to quit because of intolerable and discriminatory working conditions.” Satterwhite v.

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Smith, 744 F.2d 1380, 1381 (9th Cir. 1984). Because plaintiff was terminated, constructive

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discharge is not applicable. Second, this order assumes that plaintiff is referring to the public

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policy that an employer shall not discriminate against an employee on the basis of age, race or

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disability.

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In Tameny v. Atlantic Richfield, 27 Cal.3d 167 (Cal. 1980), the Supreme Court of

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California established the common-law tort of wrongful discharge in violation of public policy.

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In Tameny, an employer discharged an employee because of the employee’s refusal participate

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in an illegal price-fixing scheme. The lower court sustained the employer defendant’s demurrer,

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finding no cause of action for discharging the at-will employee. In reversing, the Supreme Court

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of California held that, “when an employer’s discharge of an employee violates fundamental

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principles of public policy, the discharged employee may maintain a tort action and recover

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damages traditionally available in such actions.” Id. at 170. The decisions categorized this

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common-law tort as one of “wrongful discharge” of an employee that “contravenes public

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policy.” Id. at 177–78.
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Crucial to the California Supreme Court’s decision was the fact that the complaint

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identified a statute that would be violated if the plaintiff complied with this employer’s order.

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Id. at 170. No such statute has been identified here. This is fatal to plaintiff’s claim.

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Insofar as plaintiff’s wrongful discharge claim relies upon the language of the collective

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bargaining agreement, it must be dismissed because it is preempted by the National Labor

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Relations Act. A state law claim is preempted by Section 301 of the LMRA when it necessarily

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requires the court to interpret an existing provision of a collective bargaining agreement that can

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reasonably be said to be relevant to the resolution of the dispute. Lingle v. Norge Div. of Magic

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Chef, 486 U.S. 399, 405–06 (1988). Accordingly, defendant’s motion to dismiss plaintiff’s
wrongful discharge claim is GRANTED.

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For the Northern District of California

United States District Court

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CONCLUSION
Defendant’s motion to dismiss plaintiff’s first amended complaint is GRANTED.

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Plaintiff may seek leave to amend and will have 21 CALENDAR DAYS from the date of this

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order to file a motion, noticed on the normal 35-day track, for leave to file a second amended

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complaint. A proposed amended complaint must be appended to the motion and plaintiff must

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plead his best case. Any such motion shall clearly explain how the amendments to the complaint

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cure the deficiencies identified herein.

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Plaintiff’s motion for leave to file a supplemental pleading in support of his opposition

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is DENIED because this order finds such pleading to be cumulative. Plaintiff’s motion for an

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expedited status conference and motion to stay defendant’s motion to dismiss pending discovery

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are DENIED.

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The hearing scheduled for December 13, 2012, is VACATED.

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IT IS SO ORDERED.
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Dated: November 30, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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